January 17, 2011

The Wall Street Journal has this notable new piece , headlined "Fed prosecutors in NY get child porn restitution," reporting on some recent developments in the long-running saga concerning the awarding of restitution in child porn sentencings. Here are excerpts:

Federal prosecutors intent on stemming child pornography and helping care for its victims are increasingly going after the assets of offenders under an evolving change in Justice Department policy.

In one of the most recent cases, a former provost marshal at the U.S. Army's sprawling Fort Drum in northern New York was sentenced to almost six years in prison for possessing and sharing child pornography and will soon pay $10,000 each to two victims identified from among more than 700 images of children he had. The payments are meant to deter sharing images of exploited children and to help pay for their later psychiatric or other treatment, authorities said.

Federal prosecutors said there are thousands of cases nationally, the crime proliferating with the Internet. There are 163 open matters now in the Northern District of New York, ranging from criminal appeals to initial investigations that may become cases....

Assistant U.S. Attorney Lisa Fletcher prosecutes child porn cases almost exclusively, with another assistant at the Syracuse office assigned to help with the backlog. Federal prosecutors in three other offices are likewise busy, with ongoing federal investigations and referrals from county district attorneys. "We're getting more and more people with hands-on offenses and more and more people trying to meet underage kids," Fletcher said.

According to the Justice Department, its project against exploitation of minors has increased prosecutions 40 percent since 2006, with 2,315 indictments filed against 2,427 defendants in 2009 and almost 9,000 charged altogether over four years. More than 3,000 victims of child pornography crimes were identified, with many rescued....

While some offenders have challenged restitution, which began almost two years ago, and courts are still sorting out how to handle it, Butler agreed to pay $10,000 to each identified victim, Fletcher said. One, now 19, was rescued from an abuser at age 11. "Her picture is all over the Internet," the prosecutor said.

Defense attorney Thomas Cerio said Tuesday the payments are being processed. He said that Butler, married with children, expressed remorse at sentencing, for the victims and for letting his family and the country down. Butler also lost his pension. He wasn't producing pornography, Cerio said....

In other cases around the country, judges have approved victim payments ranging from $1,000 to $200,000. Prosecutors in North Dakota decided in September to appeal U.S. District Judge Ralph Erickson's rejection of nearly $3.7 million in restitution to two victims by Robert Scheiring. He was sentenced to 14 years in prison on charges of distribution and possession of child pornography. Authorities said they found more than 600,000 pictures and 2,400 videos.

"The main issue is taking a young child who is abused or photographed or videotaped. The videotape is passed around the Internet. How do you calculate the damage to that young child as the image is viewed?" [Assistant U.S. Attorney William] Pericak said. "Suppose it's viewed by 100 or 1,000 or 150,000 people. Is there extra damage from each viewing?"

Prosecutors and victim advocates say that there clearly is harm done. The children grow up and wonder if the people they meet have seen the images. Some will end up with hundreds of thousands of dollars in psychiatric, psychological or other treatment bills from the trauma of abuse.

Comments

think it should say "Federal Theft Awards!" since the connection of most of the people being hit with this charge is so tenuous to be beyond belive...... another asinine federal law being used for everyone BUT those it was passed to cover. Just like the RICO act! cant' remember the last time it was ACTUALLY used against an organized crime family as it was written to be used.

Posted by: rodsmith | Jan 17, 2011 9:52:48 PM

I would like to learn more about restitution. What are its rules from sentencing guidelines? What are the burdens of proof? What evidence is needed (like torts or criminal law)? Do the Daubert standards apply to the valuations? The most reliable valuation is the market valuation. So if it costs 10 cents to view a picture or a dollar, that is the most reliable value. If someone is destitute, will inability to pay get replaced with longer sentences, as in $50 or 5 days of jail? If others are curious, the subject may get covered in a separate posting focusing on it.

If a male assault victim suffers a broken nose with measurable medical costs and loss of income, how come restitution is not coming his way?

From the article, "Following a 2002 U.S. Supreme Court decision that essentially found a real child had to be harmed for these cases to be actionable, Allen said the center has worked with authorities to review 44 million child pornography images and videotapes and has identified 3,365 child victims. They have also worked with Internet service providers to remove content."

What the ...? If a pedophile, forget hanging around schools. Apply to the National Center for Missing and Exploited Children for this dream job.

"While federal courts have all found that child pornography victims are eligible for restitution, they have disagreed about amounts. "It will never be possible to arrest and prosecute everybody, but our hope is there will be some level of deterrence," he said."

I hate to provide concepts for the defense of criminals, but the deterrence of "everybody" or others ("general") is an improper motive of prosecution. The deterrence of the defendant ("specific") is a proper motive. One may not prosecute the person to prevent the commission of a crime by speculative future criminals. That violates the procedural due process right to a fair hearing. To my knowledge, the defense bar has not used that argument. It would require a demand for discovery and personal testimony by the prosecution. The defense bar does not want to deter the prosecution, since the prosecution is the source of their job. These sentences, in the absence of clear evidence of harm seem like evidence that the defense bar has gone to sleep.

As a generality, the defendant needs two attorneys. One needs a defense attorney, and a second attorney, expert in lawyer malpractice to terrorize the expert defense attorney into doing a complete job. To deter ("specifically").

This profession of total incompetents is unbearable. Their incompetence is self dealing and has to be intentional. Nobody can that stupid unintentionally.

In terms of damages. The biggest, most traumatic damage is inflicted by the abusive parent, secondly by the permissive parent (no secret is possible within any family), thirdly, by the criminal lover lawyer who has loosed the vicious predator on our children, when the death penalty should have prevented all further crimes after age 14, and lastly by lazy, sloppy, incompetent parole government workers visiting the place, seeing a child living in a tent, and signing off on the home without interviewing the child. Is anybody asking for any discounts for the above damages not caused by the downloader?

It's about garnering publicity for ambitious (cynical?) government authorities. It's about "enhancing" and extending punishment for the accused. What it's not about is actually raising money to help victims.

Any money/home equity most of these defendants and their families might have had typically ends up going for legal fees.

When these guys are freed after languishing for years or decades in prison, they'll be competing for scare, low-paying jobs with folks whose names don't appear on sex-offender registries.

That means the program's success probably depends on whether the government distributes more money then it costs to collect it.

So add disappointment to the list of any tangible harms victims might actually end up enduring as a consequence of their pictures being viewed by strangers they're never likely to encounter.

Posted by: John K | Jan 18, 2011 7:51:45 PM

oops...thAn it costs, not thEn

Posted by: John K | Jan 18, 2011 8:22:43 PM

So we want the viewers to pay the the victim one might that is solicting such material.
Unfortunally the damge has been done the ones that need to pay are the ones creating and publishing such material. We assume that anyone who views such materail does it for pleasure and enjoys it would be an unfair statement . Those at the Pentagon who also committed this crime is not be held to the same punishment they purchased such material
but if someone set at home and uses a p2p program and acquires such material they are held to a tougher sentence they have no prior convictions of such crime they have never touched or acted upon but know we want to label them as offenders .Im not cold hearted I feel aweful whats happening to these kids is horrible the true offenders are the ones producing and the ones paying to view . It seems its the role you play in society on how you are treated not by the crime. One said that if more wealhty kids was involved in such crime the laws would be different because they did this with drugs you dont punish the user its the pusher.

Posted by: ethel | Jan 19, 2011 10:48:44 AM

I think you are right when you say this. Hats off man, what a superlative knowledge you have on this subject…hope to see more work of yours.